AFER Supporter Gave Thousands to Anti-Gay Virginia Candidates

Paul Singer

The wealthy hedge fund manager who will host a September 22 fundraiser in his Manhattan home for the pro-gay marriage American Foundation for Equal Rights gave $125,000 to the 2009 campaigns of Bob McDonnell and Ken Cuccinelli, two Virginia social conservatives who have made controversial anti-gay moves in their first few months in office.

Paul Singer, the chief of Elliott Management, a multi-billion hedge fund, gave $100,000 to McDonnell, currently Virginia’s governor, between April of 2009 and September of that year and $25,000 to Cuccinelli, Virginia’s attorney general, in August of 2009. McDonnell and Cuccinelli are Republicans and Singer has a long history of making substantial donations to that party’s state and federal organizations and candidates as well as to right wing think tanks and policy groups.

After saying during his 2009 campaign that he was “completely supportive of policies of non-discrimination,” McDonnell issued a 2010 executive order banning discrimination in state government jobs that omitted sexual orientation as a protected class.

McDonnell’s predecessor, Democrat Tim Kaine, included that class in a 2006 executive order that banned such discrimination. Following a national outcry, McDonnell issued an executive directive, which does not carry the force of law, that said it was the policy of his administration to “prohibit discrimination for any reason.”

In March of this year, McDonnell told WRVA, a Richmond radio station, that laws banning discrimination based on sexual orientation may be unnecessary.

“I don't know that we need it based on the numbers that I’ve seen,” he said. “There really isn’t any rampant discrimination on any basis in Virginia. If you're going to have a law, it needs to actually address a real problem.”

When in Virginia’s legislature, McDonnell voted to exclude sexual orientation from a state hate crimes law, opposed same sex marriages, and backed an amendment to Virginia’s state constitution that barred any state recognition of same sex partnerships, either marriages or civil unions. The amendment’s language was so sweeping that some Virginia legislators thought it might bar unmarried couples, straight or gay, from entering into any type of contract. In 2006, when he was Virginia’s attorney general, McDonnell issued an opinion saying that the amendment “will not affect current legal rights and obligations of unmarried persons.”

McDonnell’s anti-gay views are longstanding. During the 2009 campaign, the Washington Post reported on August 30 that McDonnell’s master’s thesis from Regent University included harsh, anti-gay language.

“However, man’s basic nature is inclined towards evil, and when the exercise of liberty takes the shape of pornography, drug abuse, or homosexuality, the government must restrain, punish, and deter,” McDonnell wrote in the 1989 document.

Later in the thesis, McDonnell wrote “[E]very level of government should statutorily and procedurally prefer married couples over cohabitators, homosexuals, and fornicators. The cost of sin should fall on the sinner not the taxpayer.”

Cuccinelli sparked controversy early in his tenure when he wrote to Virginia’s state colleges telling them that since the state legislature had not barred discrimination based on sexual orientation or gender identity their policies should not ban such discrimination.

“It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including ‘sexual orientation,’ ‘gender identity,’ ‘gender expression,’ or like classification as a protected class within its non-discrimination policy absent specific authorization from the General Assembly,’’ Cuccinelli wrote in the March 2010 letter.

Like McDonnell, Cuccinelli has long opposed gay, transgender, lesbian, and bisexual community goals. In 2009, Singer also gave $10,000 to Jill Holtzman Vogel and $25,000 to Barbara Comstock, both are Republicans and social conservatives who won seats in Virginia’s legislature last year.

Singer has supported gay causes giving $100,000 to the Gay, Lesbian and Straight Education Network in 2003 and at least $100,000 to the National Gay and Lesbian Task Force, also in 2003. Singer gave $200,000 to oppose a 2009 Maine ballot initiative that successfully overturned a legislative enactment of same sex marriages there.

The New York Times reported on August 27 that Singer has given “$4.2 million to groups supporting gay rights and same-sex marriage.” Singer did not respond to an email seeking comment and further details on his pro-gay philanthropy.

The foundation hired lawyers David Boies and Ted Olson to sue to overturn Prop. 8, the 2008 ballot initiative that banned same sex marriage in California.

AFER Fundraiser: Check Your History at the Door

The invitation to the Sept. 22 fundraiser via towleroad.com

The gay and lesbian community awoke on August 27 to read an odd assertion in a New York Times story. Paul Singer, who runs a multi-billion dollar hedge fund, has secretly donated to gay causes.

“With no public disclosure, Mr. Singer has given more than $4.2 million to groups supporting gay rights and same-sex marriage, like the National Gay and Lesbian Task Force Action Fund, associates said,” Eric Lichtblau, the Times reporter, wrote in the story that presented Singer as a defender of Wall Street and representing a trend of finance industry campaign donations flowing to Republicans and away from Democrats.

Singer is hosting a September 22 fundraiser in his Manhattan home for the American Foundation for Equal Rights, the California group that hired lawyers David Boies and Ted Olson to sue to overturn Prop. 8, the 2008 voter initiative that banned same sex marriage in that state. A copy of the invitation was posted on towleroad.com.

Singer’s co-hosts are Ken Mehlman, the newly out gay man who helped the Bush White House organize anti-gay marriage ballot initiatives in 11 states in 2004 as part of a strategy to turn out conservative voters, and Peter Thiel, the former chief executive officer of PayPal, the web payment service, and now the chairman of Clarium Capital, another hedge fund. Reportedly, Thiel is gay.

When Mehlman came out in an August 25 story in The Atlantic it was clearly timed to coincide with the fundraiser so as an organizer of the 2004 campaigns it would seem that he was doing penance for those earlier anti-gay efforts. Singer and Thiel bring plenty of their own right wing baggage to this fundraiser. Call me cynical, but the same people who helped Mehlman spin his coming out may be helping Singer.

For years, Singer has been a reliable and generous donor to many state and federal Republican political organizations, candidates, and office holders including some of the most anti-gay members of that party, such as Rick Santorum and Bill McCollum, who lost a bid to become the Republican nominee for Florida’s governor’s office on August 24. Singer has also supported moderate Republicans and has donated to Senator Chuck Schumer, a Democrat. In New York, he has donated to Democrats and Republicans, but his largest donations have gone to the state Republican and Conservative parties.

In 2008, the Paul Singer Family Foundation gave $275,000 to the Manhattan Institute, a right wing group that has Singer as the chair of its board. Plenty of the experts at the institute have opposed gay marriage and other gay causes. The foundation gave the institute $30,000 in 2007. Also in 2008, the foundation gave $50,000 to the Witherspoon Institute.

On its web site, Witherspoon describes itself as “an independent research center that works to enhance public understanding of the moral foundations of free and democratic societies.”

Its fellows include Robert George, a Princeton University professor and a leading opponent of same sex marriage, and W. Bradford Wilcox, a professor at the University of Virginia who says he is less opposed to same sex marriage and more of a proponent of traditional marriage. Wilcox’s work is frequently cited by gay marriage opponents. Other Witherspoon fellows have been active in opposing the gay community.

In 2002, George, the chairman of the National Organization for Marriage, co-authored a friend-of-the-court brief for the Family Research Council and Focus on the Family, two conservative groups, in Lawrence v. Texas, a US Supreme Court case, that urged the court to uphold the Texas sodomy law. The court struck down the nation’s remaining sodomy laws in that case. In 2006, George was a co-founder of a religious coalition that supported an amendment to the US Constitution to ban same sex marriage.

George is the director of the James Madison Program in American Ideals and Institutions at Princeton and Singer is one of the program’s advisors. The program is affiliated with the James Madison Society which includes many conservative professors, with some noted opponents of the gay community, among its members. Wilcox is a member of that society.

In 2007, Wilcox received a “multi-year grant” from the Institute for American Values, a New York City group headed by David Blankenhorn who testified for the pro-Prop. 8 side at the trial. While he has been vilified in the gay community and in some of the mainstream press, his testimony was ultimately more helpful in striking down the initiative.

In research that may be aimed at same sex parenting, the Institute for American Values grant to Wilcox will fund research into “the ways in which parenting is gendered -- in both positive and negative ways,” how gender differences in parents are “related to child well-being,” and if gender differences “contribute to conflict between parents.” Blankenhorn’s institute also funded Dr. Kathleen Kovner Kline to do similar research in Denver.

The only donations by Singer to gay groups that I could find came in 2003 when the foundation gave $100,000 to the Gay, Lesbian and Straight Education Network and at least $100,000 to the National Gay and Lesbian Task Force. And, no, I am not taking the word of anonymous “associates” or the New York Times that Singer handed out over $4 million to gay causes.

Similarly, Thiel, the other co-host, has supported a mix of Republican candidates, office holders, and organizations with some of his cash going to moderates and other checks paid to anti-gay Republicans.

In 2008, Thiel gave $250,000 Federalist Society, a group of conservative and libertarian lawyers who support a reordering of “priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law” and $100,000 to the Hoover Institution, a conservative policy group at Stanford University. He have $75,000 to the Institute on Religion and Public Life in 2006. While claiming to be non-partisan, that institute was the creation and primary voice of Richard John Neuhaus, a neoconservative Roman Catholic priest.

This fundraiser for the American Foundation for Equal Rights looks increasingly bizarre. When donors to a gay group must hire publicists to plant stories about the alleged secret philanthropy of one to gay causes or another’s struggle with his gay feelings as he attacked the gay and lesbian community it seems to me that the message is that they have doubts about their commitment. Or they think the rest of us will question their motives. The solution would have been to approach Mehlman’s coming out with some humility, but I doubt he knows what that is.

UPDATE: A poster on Queerty.com noted that Singer donated to the campaign to defeat Question 1, a 2009 ballot initiative that overturned Maine's legislative enactment of same sex marriage. He did indeed give $200,000 to that effort in three separate donations. I will say this. What Singer gives with one check he takes away with many others. A Republican majority in Congress or any state legislature is a near guarantee that the bisexual, transgender, lesbian, and gay community will see no progress on our issues. It is clear to me that he wants Republicans in office. Additionally, he is supporting the think tanks and academics that vigorously oppose our community.

Target's Politics: The Exception or the Rule?

Appearing on Michelangelo Signorile’s radio show, Fred Sainz, a spokesman for the Human Rights Campaign, defended the group’s Corporate Equality Index saying that it gave bisexual, transgender, gay, and lesbian job seekers a way to assess a prospective employer’s policies.

The index asks, among several items, if employers have anti-discrimination policies that include protections based on sexual orientation and gender identity or do they grant employee benefits to the unmarried partners of their employees. With a possible maximum score of 100, employers can lose 15 points if they engage in “activity that would undermine LGBT equality.”

Sainz told Signorile on August 18 that the index helps people in “understanding the difference between a company being a very solid employer for LGBT people and, in fact, having progressive policies that all Americans don’t enjoy under federal law and understanding perhaps their more holistic persona when factoring in political contributions.”

Doubts about the index arose after Target, the Minneapolis-based retailer, gave $150,000 to MN Forward, a right wing 527 group, that used the cash to pay for television ads supporting Tom Emmer, a candidate for governor in Minnesota and a conservative who holds anti-gay positions. The Human Rights Campaign gave Target perfect 100s in the 2009 and 2010 indexes.

Signorile raised a question about the index -- how could a company that supports political views that are fundamentally at odds with the central goals of the transgender, lesbian, bisexual, and gay community score a perfect 100 on the index and why was it still listed after the disclosure of the MN Forward donation? The Human Rights Campaign ultimately delisted Target, but the gay rights lobbying group is missing a larger point.

Some quick and admittedly cursory searching at opensecrets.org, the web site operated by the Committee for Responsive Politics, shows that corporations that scored a 100 on the 2010 index have employees and directors who donated to pro-gay senators and representatives as well as the most anti-gay members of Congress. Companies with a perfect score that have their own political action committees were just as likely to have supported our friends as our opponents.

Notwithstanding their willingness to put in place a few pro-gay policies, corporations are generally agnostic or oppose the community on our political issues. This was evident in 2007 during lobbying for the Employment Non-Discrimination Act, a federal law that then barred discrimination in employment based on sexual orientation.

Back then, only nine companies and the University of Michigan lobbied in favor of the act. Some major business lobbies -- the American Benefits Council, the US Chamber of Commerce, the National Association of Manufacturers, and the Retail Industry Leaders Association -- were neutral on the bill. The Business Roundtable, an association of chief executives of U.S. companies, never disclosed its position. That neutrality should not be dismissed because it contributed to the employment act passing the House. It came at a very high price.

Using the definition of married in the 1996 Defense of Marriage Act, which says marriage is only between a man and a woman, the employment act said an employer cannot be required “to treat a couple who are not married in the same manner as the covered entity treats a married couple for purposes of employee benefits.”

In other words, a gay or lesbian couple who married in the six jurisdictions where such unions are legal are not recognized as legal spouses under the employment act and employers need not give the same employee benefits or any benefits at all to the spouses of their married gay and lesbian employees.

What makes this concession to these business interests particularly noxious is that back in the 80s and 90s, when the gay and lesbian community sought domestic partner benefits from employers, we demonstrated definitively that the cost of such benefits to employers was minimal. There is no reason to believe that the cost would differ when they are paid to the legal spouse of a gay or lesbian employee.

What we saw in 2007 was corporate America’s real view of the lesbian, transgender, bisexual, and gay community. Companies want our money and they will make pitches for it. They will give a few benefits, but when it comes to the important matters, health insurance for instance, companies are unwilling to spend serious cash though obviously there are exceptions to this.

The larger problem with the Corporate Equality Index is that it gives the impression that corporate America has our back. It does not. As we saw in 2007, when the interests of the transgender, lesbian, gay, and bisexual community are in conflict with what business wants, we lose.

Does NOM Chair Endorse Anti-Gay, Anti-Abortion Violence?

NOM Chairman Robert George

Publishing in the Yale Law Journal in 1997, Robert P. George, chairman of the National Organization for Marriage, explored the conflicts over some social issues and asked the question “Is it possible for people who sharply disagree about important questions of morality, including those pertaining to abortion and homosexuality, to constitute a stable political society whose basic constitutional principles can be affirmed as just by all reasonable parties?”

The Princeton professor and an influential conservative opinion maker spent nearly 17,000 words exploring the answer then summed up in a section titled “Civility, Reciprocity, and the Conflict of ‘Comprehensive Views.’”

It is possible, George concluded, “for citizens who differ fundamentally over certain basic moral questions to share a ‘deliberative’ conception of democracy that includes the mutually recognized obligations of citizens to treat those with whom they disagree with civility and respect.”

He cited “Democracy and Disagreement,” a 1996 book by Amy Gutmann and Dennis Thompson, as an example of those on the left who proposed a framework for tackling seemingly intractable issues.

“Their claim, rather, is that ‘reciprocity,’ which they consider to be deliberative democracy’s ‘first principle,’ demands that people recognize that others who come down on what they judge to be the wrong side of a disputed moral question may nevertheless be reasonable and honest people who deserve, therefore, to be reasoned with and treated with respect,” he wrote. But George equivocated.

“Yet reasoning with people and treating them with respect does not entail tolerating what one judges to be grave injustices so as not to offend those who judge otherwise,” he wrote. “Nor does it mean that one ought not to oppose injustices resolutely and forcefully in one's advocacy and action. Nor does it mean that one may not protest against injustices or even practice civil disobedience to prevent them. It does mean, however, that one has certain obligations to one's opponents, obligations that are not mere matters of politeness.”

That mildly ominous line had an endnote that read “For a succinct and, in my view, sound treatment of the morality of civil disobedience, see Finnis et al., supra note 46, at 354-57. On the vexed question of when violence may be used to combat injustices, see id. at 308-18.”

So it is a difficult question, but, in George’s view, apparently, violence can be used to fight injustices. But when?

The endnote referred to “Nuclear Deterrence, Morality and Realism,” a 1987 book by John Finnis, Joseph M. Boyle, Jr., and Germain Grisez. Like George, the authors are proponents of natural law theory, a 13th century philosophy that argues that moral truths can be discerned through reason and by observing man and the natural world.

As the title suggests the book is concerned with the moral questions that are raised by a central feature of nuclear war -- the idea of destructive weapons as implements that prevent violence. The pages that George cited wrestle with the inevitable killing of non-combatants, or “innocents,” that would result from a nuclear strike. Then there are some broader arguments.

“Justified social use of force is not limited to cases where those challenging just order are already attacking the lives of others,” Finnis and his co-authors wrote. “Also, as explained above, nothing in our moral theory limits the justifiable use of lethal force to cases in which human life is threatened. And so, just as a woman about to be raped can be justified in using lethal force against her assailant, so a society whose just order is about to be attacked by wrongdoers can be justified in using lethal force to defend itself.”

So when the “just order” of a society is threatened, that society can use force, even “lethal force,” to defend itself. In George’s world view, gay, lesbian, bisexual, and transgender people are not part of the “just order.” On the contrary, we threaten it.

George is a vocal opponent of same sex marriage. He has argued for criminalizing homosexuality. In 2002, he co-authored a friend-of-the-court brief for the Family Research Council and Focus on the Family, two conservative groups, in Lawrence v. Texas, a US Supreme Court case, that urged the court to uphold a Texas sodomy law. The court struck down the nation’s remaining sodomy laws in that case. George aided Colorado in its defense of Amendment 2, a 1992 law passed by voters in that state that barred any government entity there from enacting a regulation or law that banned discrimination based on sexual orientation. The US Supreme Court struck down Amendment 2 in 1996.

The American right wing has been saying for some time that they are subjected to discrimination, harassment, and even violence for expressing their views. In fact, it is lesbian, transgender, bisexual and gay Americans who endure violence, but that has not stopped conservatives from complaining publicly and in federal court cases that they are victims. Finnis and his co-authors have a comment on such a circumstance.

“Moreover, those who are mounting a serious challenge to just order and backing that challenge with the threat of force, even if they are not already threatening the lives of others, are almost certainly ready and willing to escalate their challenge to the point of killing,” they wrote. “Hence, if authorities reasonably judge that a particular challenge to just order cannot be met without using lethal force, its use will almost always be in defence of life as well as of other values included in and protected by just order.”

George did not respond to an email seeking an explanation.

Robert George responds:

In my opinion, there are no circumstances under which violence could be justified in any cause connected to sexual morality and marriage. It would be profoundly morally wrong for anyone on either side, or any side, to resort to violence (or the threat of violence or intimidation). Both sides, or all sides, are strictly morally obligated to use nonviolent means.

In a constitutional democratic polity such as ours, the currency of politics is reasoned argument. We all have the moral right to participate in the process and attempt to persuade our fellow citizens of the soundness or our views and the unsoundness of our opponents’ positions. Where people disagree about the requirements of justice and the common good, they should treat each other with respect even as they strongly argue for the positions they regard as true. I have no problem with the rough and tumble of democratic politics. Elections are not philosophy seminars. But I have a big problem with violence in any cause or for any political reason. I don’t mind politicians or political groups on all sides running aggressive and even negative ads or engaging in peaceful and respectful protests. That’s free speech, and it is protected by our Constitution. But violence and intimidation are different matters altogether, and have no legitimate place in our politics.

You asked when I believe violence can be justified to fight injustices. My answer is in line with traditional just war theory, except that I reject punitive war (which many traditional defenders of just war regarded as legitimate). (So I believe that war must be declared or launched by legitimate authority, be for defensive purposes, respect non-combatant immunity, etc.) I argued in a piece in the Wall Street Journal a few years ago that pre-emptive attacks against unjust aggressors who were themselves in the course of planning murderous attacks on others could legitimately be classified as defensive, and were therefore potentially justifiable. (I say “potentially” because any particular pre-emptive attack might be unjustified for other reasons. My point is only that one cannot infer from the fact that an attack is pre-emptive that it is something other than defensive. A pre-emptive attack might very well fail to qualify as defensive. But if such an attack fails to qualify as defensive, it is not necessarily because it is pre-emptive.) I realize that this position is controversial among just war theorists. Many believe that pre-emptive attacks by definition fail to qualify as defensive.

Anti-Gay Policies Made Sense in '97: More Socarides Memos

Former Clinton Advisor Richard Socarides

As a lawsuit brought by the Log Cabin Republicans that challenges the military’s Don’t Ask, Don't Tell policy opened on July 13 in a federal court in San Diego, Richard Socarides, a former advisor on gay issues in the Clinton White House, told the Associated Press that the defense of the policy by the Obama administration was nonsensical.

“On the one hand, [President Barack Obama] has said he's working hard to stop these discharges,” Socarides said. “And on the other hand, the Justice Department is spending taxpayer dollars defending their ongoing right to kick people out.”

What must also be nonsensical then is that, as Gay City News reported, Socarides aided the Clinton administration in deflecting criticism of Don’t Ask, Don’t Tell by drafting presidential debate talking points in 1996 that advised President Clinton to dodge the issue. Socarides continued to aid the White House on that issue into 1997.

In February of that year, the Servicemembers Legal Defense Network, a group that assists lesbian and gay servicemembers, was preparing to release a report showing that discharges under Don’t Ask, Don’t Tell had increased by 42 percent since the policy was implemented. White House staff contacted the Pentagon to head off “any combative language” and Socarides told people at 1600 Pennsylvania Avenue what to say.

“The policy was intended to provide an opportunity for continued service to those willing to abide by the new policy,” Socarides wrote in a February 25, 1997 memo titled “Draft Talking Points: SLDN Report on Gays in the Military” that was downloaded from the Clinton Library. “While we have not had an opportunity to review the report, the allegation that the policy is not being implemented fairly, if true, is quite troubling.”

Socarides noted that then Defense Secretary William Cohen had “instructed his staff to investigate the allegations and any other relevant information to determine what is happening” and that “Secretary Cohen has indicated that violations of either the letter or the spirit of the policy will not be tolerated and the President, of course, concurs in this judgment.”

With appearances on cable TV, quotes in the mainstream press, and a recent editorial in the Wall Street Journal, Socarides is a leading critic of the Obama administration who whips the current White House for failing to undo the policies that Socarides’ former boss put in place.

This nonsensical posture does not end there. Just as Socarides drafted 1996 talking points that defended Clinton’s support for the Defense of Marriage Act, the 1996 legislation that barred the federal government from recognizing same sex marriages and allowed state governments to do the same, he aided Clinton in responding to a 1997 announcement from the Democratic National Committee that it would begin providing health benefits to the domestic partners of its employees.

In a May 14, 1997 memo titled, “Talking Points: DNC/Domestic Partner (Health Care) Benefits for Same Sex Partners,” Socarides wrote that businesses and non-profit organizations had the option of providing such benefits. What the DNC did was its business.

“Decisions relating to employee benefits are made by the Chairman and senior DNC management,” Socarides wrote. “The White House was made aware of the policy change at a staff level.”

And the president’s position on such benefits?

“The President is aware that many communities and institutions are considering whether basic benefits can be provided outside the context of traditional marriage,” Socarides wrote. “The challenge in addressing these issues is to remain sensitive to the values of our communities while preserving the fundamental right to live free from unjustified discrimination.”

Roughly two months later, Socarides issued another set of talking points on domestic partner benefits that recommended neutrality.

“While I'm sympathetic to many of the concerns raised, I think we will have to moniter (sic) for a time how these policies work in practice and take a hard look at what's happening in the private sector and in communities which have instituted such policies,” Socarides wrote in a July 21, 1997 memo titled “Domestic Partner Proposed Talking Points.”

Nonsensical indeed.

Using Faggot Isn't Anti-Gay, Judge Asserted

Joseph Holladay on July 1, 2009, three days after the assault

Before he laid out his reasons for dismissing the hate crime charges against Driton Nicaj, a now 20-year-old who was indicted on two counts of third degree assault as a hate crime in the 2009 attack on Joseph Holladay, Judge Ronald A. Zweibel turned to his copy of the Oxford Dictionary of the English Language, which was published in 1982, for a definition of the word “faggot,” the slur Nicaj used during the assault.

“[T]he Oxford Dictionary makes no reference to faggot meaning a male homosexual, which is not surprising given that it is not a common slang usage in the United Kingdom,” Zweibel wrote in the December 10, 2009 decision dismissing the charges. “The origin of the term faggot to derogatorily refer to a homosexual male is obscure and subject to much urban legend.”

The gay men, like Holladay, who have heard that word before, during and after an attack know all too well that it comes from prejudice and violence. Its meaning is as clear as the blow from a fist, the wound from a knife or bullet, or the pain that lingers long after the cuts, bruises, and broken bones have healed.

In his 12-page decision, Zweibel spent a page-and-a-half pondering the word “faggot.” When it seemed he would assert that Nicaj’s meaning was unclear, Zweibel concluded that in the United States “a person of ordinary intelligence would take it as a derogatory term for a male homosexual and no reasonable person would infer that respondent was calling the alleged victim a bunch of twigs.”

Nicaj’s assault left Holladay unconscious and put him in the hospital. Roughly 24 hours later, Nicaj attacked two others, also gay men if 2009 press reports are to be believed, with the attacks taking place 30 minutes apart. One of those men had a broken nose and three skull fractures requiring six hours of surgery to insert a metal plate in his head. It is beyond offensive for Zweibel to muse at length on the meaning of “faggot” given what these men endured.

In a deal with the Manhattan district attorney, Nicaj pleaded guilty to the assaults and was sentenced to 45 days in jail and three years on probation. He began his sentence on May 20 and was released on June 9 after accounting for time served and good behavior.

Zweibel also looked like a fool. It did not occur to him that consulting a 28-year-old dictionary is a mistake when one is trying to look clever. “Faggot,” the anti-gay slur, has been among the definitions of that word in the Oxford English Dictionary since 1989 and the 2005 edition of the Oxford American Dictionary has the slur as the first definition of the word.

Just as offensive was Zweibel’s tortured reasoning on what was shown by Nicaj’s use of “faggot” as he committed the assault. Zweibel called it “just typical trash-talking” in his decision. It was not evidence of Nicaj’s motivation or state of mind.

“First, there is no evidence that the alleged victim is a homosexual,” Zweibel wrote. The New York state hate crime statute does not require that the victim be a member of the law’s protected classes, which include sexual orientation. The defendant need only believe that the victim belongs to those classes. How would we know what Nicaj believed? According to Zweibel, what he said during the assault is not evidence of what he was thinking at the time.

“Second, there is no evidence that defendant believed that the alleged victim was a homosexual -- except for the fact that he called him one,” Zweibel wrote.

Saying that this could lead to bizarre cases, Zweibel went on to list fictional cases in which “calling a Jew a wop” or “calling a black person a white Aryan bastard” or “calling an atheist or agnostic a Christian or Islamic fascist” could lead to a prosecutor charging a hate crime.

“The law does not countenance absurd results such as this,” Zweibel wrote.

The problem with American hate crime laws has never been that they lead to “absurd results.” The problem has always been that they are not used by law enforcement and prosecutors. Clearly, we have a problem with some of our more benighted judges as well.

City Discloses Wider Porn Shop Arrest Effort

Blue Door Video on First Avenue

Speaking at a hearing on four federal civil rights lawsuits brought by five men who charge they were falsely arrested for prostitution in porn shops and a spa by New York City vice cops, an attorney for the city said police made such arrests in 10 businesses from January 2007 to the end of 2009.

Attorneys for the five men have argued that the city made the arrests so it could later cite them in nuisance abatement lawsuits it brought to try and shut the businesses down. Tonya Jenerette, a senior counsel in the city’s Law Department, said that the city’s data did not support that.

In the three-year period, 75 lawsuits brought against businesses by the police department’s legal unit cited prostitution arrests, but just eight of the 75 cited arrests of men, Jenerette said. Two of 24 lawsuits that cited prostitution arrests brought during that time by the Mayor’s Office of Special Enforcement cited arrests of men.

“Their theory of the case is just nonsense,” Jenerette said at the July 7 hearing before Judge Shira A. Scheindlin. Jenerette did not say how many men were arrested altogether and she declined to comment following the hearing.

Reporting for Gay City News, I previously identified six porn shops and two spas in which men were arrested for prostitution by officers in the Manhattan South Vice Enforcement Squad in 2008. Among the six porn shops, only five were sued by the city so it is possible that there are additional businesses where such arrests were made, but they are not included in Jenerette’s data because those businesses were never sued. At least 30 men were busted in the six porn shops. Eleven men and one woman were busted in the two spas.

Attorney Michael L. Spiegel is representing three men who were busted in Unicorn DVD on Eighth Avenue and one man who was arrested in a 34th Street spa. James I. Meyerson is representing Robert Pinter, a gay man who was arrested in Blue Door Video on First Avenue and blew the whistle on the city in late 2008. It appears that the police department largely stopped making these arrests after Pinter went public. A man who was arrested in an East 37th Street spa is suing the city in state court.

While interesting, Jenerette’s data does not disprove the plaintiff’s theory. It may supply more information to bolster that theory. Then the plaintiffs never claimed that they were the only population targeted by the police.

What Jenerette’s data clearly does not explain is the improbable nature of these arrests. In Blue Door Video, eight of the 12 men arrested were between 42 and 54.

These arrests were made by the same crew of undercover officers who were identified only by their badge numbers in criminal and civil court records. Just two officers -- 3371 and 31107 -- made most of the porn shop arrests. Undercover 3371 is known to have busted at least 16 men. Four were 27 or younger, six ranged in age from 32 to 38, and another six were 41 to 49. Four of the seven men that 31107 arrested ranged from 34 to 37 and two were 43 and 44. The oldest, Pinter, was 52.

In a December 3, 2008 email to me, Paul J. Browne, the police department’s chief spokesman, wrote that “So far in 2008, 31 out of 179 men who were arrested for prostitution-related offenses in Manhattan South were above the age of 40. In other words, 82.7 percent were younger, often in their 20s.”

Or, in other words, male prostitutes arrested in Manhattan South, which ranges from 59th Street to the bottom of the island, were overwhelmingly younger men. So how does one explain this concentration of older male prostitutes arrested in Blue Door Video and other porn shops?

What Pinter and other men who were arrested said was they were first approached by a young, attractive man who flirted aggressively with them. After they agreed to consensual sex, with the young man insisting that the sex take place in his nearby apartment or car, the young man then said he would pay them for the sex. The offer of money usually came right before the arrest.

It certainly looks like the city was less interested in addressing prostitution and more interested in racking up arrests to be used in closing porn shops, an industry that the city has been attacking for decades.

In 2008, police arrested 151 men, 329 women, and 32 people whose gender was “unknown” for prostitution in Manhattan, according to statistics from the state Division of Criminal Justice Services. In 2009, police arrested 57 men, 247 women, and 28 people of “unknown” gender for prostitution in Manhattan. Inexplicably, prostitution arrests in Manhattan fell by 35 percent in 2009 over 2008. In the other four boroughs, prostitution arrests were stable or increased in 2009 over 2008.

I know from reviewing roughly 35 nuisance abatement lawsuits brought by the city in 2008 that the undercover officers who arrested men in porn shops and spas also frequently worked together arresting women for prostitution and unlicensed massage in other businesses.

What the state data suggests is that when the gay community objected in late 2008 to the police tactics used in these arrests, the bosses at One Police Plaza flipped a switch and Manhattan prostitution arrests plummeted in 2009. That may be due to the city not caring so much about prostitution and caring more about shuttering porn shops, spas, and massage parlors. Of course, that also means that Jenerette is wrong.